tv Heffernan v. City of Paterson Oral Argument CSPAN August 9, 2016 6:00pm-7:01pm EDT
violates the first amendment. the issue in this case was whether the first amendment protected the least officer jeffrey heffernan since he wasn't engaging in first amendment speech or association. the court rules that it does. in 2006 mr. heffernan of paterson new jersey detective was spotted picking up a lawn sign in the local him or his race. the next day he was demoted to a b copy it. >> there are good versus morning case 141280 heffernan v. city of paterson new jersey. >> mr. chief justice and may it please the court public employees have a right not to be demoted. it does not matter if you are affiliated with the specific party or you are not affiliated. it does not matter if you are mistakenly perceived by your employer or supervisor that you
are engage to and political association to be protected by the first amendment. >> how would you do find the right at issue in this case? >> the issue here. >> how would you define the right that your client. >> i am defining the right pursuant to tell ron that there is -- it is not necessary to have any affirmative acts that by virtue of being a public employee has the right not doing gauge in political association. >> that's just a restatement of l. ron. would it be fair to the proposition that you are putting in to say that you were asserting the right to be free from government inquiry into an oversight, would that be a fair statement? >> that would be a fair statement justice kennedy.
speith it sounds to me from the way you began your argument that we take this case on the assumption that if he had picked up a sign and he had been supporting the candidate for chief of police who was challenging the incumbent, if he had been engage to give it a there would be protected and he could not have been demoted. do you want us to take the case on that proposition? do we have to accept that proposition in order to prevail on that? >> you do not have to accept that proposition. the proposition is clearly has a public employee he has a right to either either associate or not associate and doesn't have to commend affirmative act of support in this case of the mayors opponent which was chief spagnolo. >> the first amendment talks about abridging freedom of speech and i thought the case came to us on the proposition
that he wasn't engaging in speech at all and he was not engaging in association, that he was not engaging in trying to convey a message. he was just picking up a sign for his mother and if that's the basis in which the case comes to us i'm not sure how we can say his freedom of speech has been abridged. >> in this case mr. chief justice the case comes to us with respect to association with respect to speech, speech is governed by different doctrine as association. there's no need to do an analysis in this case. >> he was associating with anybody anymore than he was speaking. he was doing either one. associating with his mother i suppose in picking up the sign for her but he was not expressing any political view. he was not associating with the political party. what case of hours vindicates
the right that justice kennedy described to you in which you read lee agreed with? what case of hours vindicates that? >> l. ron. >> elrod says you have a first amendment right to favor a political party or not favor a political party and you cannot be fired for doing so. that's what happened here. >> but he was not favoring a political party. >> exactly he was not expressing any political view whatever. i mean he was fired for the wrong reason but there's no constitutional right not to be fired for the wrong reason. if he was fired because his government employer thought he had committed a felony and he hadn't, he might have a cause of action under some statute but there's no constitutional right not to be fired for the wrong reason and that's what happened here. >> as a constitutional right
justice scalia to be able to be free from patronage, decisions and to be discharged or demo did on patronage grounds. >> we never said that. elrod and brandy are cases decided under the first amendment. the first amendment guarantees the right to freedom of speech and freedom of association. your client was neither speaking nor associating so how could he possibly have -- under the first amendment? >> he doesn't need to speak and he doesn't need to take a position. the plaintiffs didn't take a position with respect to promotion or transfers. the fact of the matter is that since they were not affiliated with the republican party or supporting the republican party or endorsed by the republican party none of those individuals
would have been promoted or transferred. they didn't take any affirmative acts. >> i understand your answer. what expressive activity did he engage in? he was not allegedly demoted for failing to support the mayor. he was allegedly demoted for seemingly supporting the mayor's opponent. >> in waters, this court looked at the motive of the employer, the motive of government. if government perceives that you are engaging in a political activity and the motive is suppressed in association or non-associations then you look at it through government analysis and there are facts
that you're evaluating. here they evaluated the act that was engaged in campaigning. officer heffernan went to a political gathering. he went and picked up a sign. what was misperceived by his employer was the fact of his intent. he said i'm not intending to support him but he is doing all those incidents that are first amendment activities. >> let me clarify how i thought the case was presented. let's say the employer comes in and says to smith i saw you getting a political sign and you are fired and smith says it wasn't me. i was often a different town. in other words it's a pure statement of the facts. your answers take advantage of the fact that you could perhaps bargain this was an expressive activity.
he was getting a sign but your thought didn't depend on that at all. now can the person who wasn't even there, can he bring a first amendment challenge to dismissal? >> yes mr. chief justice and the point that i was making. >> it's still not clear to me what is the right that he is asserting? and i will back up. can a local government say that all employees must be neutral in campaigns and must not take hard in a campaign? >> there are hatchbacks. there was no provision here. >> can the government insists on the pallet a? >> i think the government can have a policy after balancing the interests between that of the employer and pat of the
position. >> is that an issue in this case is there any allegation that is cause for neutrality that no employee could engage in activity? >> justice ginsburg there was no such policy in this case. >> sorry i thought there was a policy. >> there was a policy that existed with respect to members of his staff only however with respect to that policy, there is no testimony regarding that policy. in other words the people that work in the chief's office there were four individuals who are officers. none of them ever heard of that policy. that policy was never raised allowing any of the motions for summary judgment. we believe that motion is way
but to answer your question your honor, the fact that no one knew of this policy so he could say he had a policy and he could make reference to it.it's not supported by any evidence in this case. >> is there a remedy for your client under this action under the first amendment? does he have civil service protections of any kind? >> let's just say what would happen if the boss comes in and says you know you didn't turn off the lights last night, you are fired. is there a way for him to say i was on leave yesterday, it wasn't made? >> that's not a constitutional violation. >> is there adequate remedies to address what may or may not be a first amendment issue. >> mr. chief justice there is a state of new jersey has a state
civil rights act which mimic's 1983 because there is such a right. doesn't mean you can diminish the first amendment and give up your first amendment rights so clearly we proceeded with the fact that there was a violation of the first amendment because it was created by the same. >> what is the new jersey at? that's a strange act that a texas-based employment only against first amendment violations? they must have other protections for state employees. >> with respect to the new jersey statute is identical to a 1983 action so it doesn't give you any additional rights. >> you have to violate the federal constitution under the new jersey law? >> that's what 1983 says.
what is the new jersey lost a? >> he proceeded in central court and he had every right to receive and civil court. >> what does the new jersey law say? >> the statute mimics the 1983 cause of action. >> is says you can't fire a state employee in violation of a federal prosecution. that's a strange law. >> you don't have the text of it do you? the text of the new jersey law? >> the new jersey law can't create substandard rights so with respect to this matter is also not protected by civil service either. >> new jersey law provides a statutory right of action or an attempt to violate an individual >> and an attempt to violate? >> it included in their but it
doesn't give you an exclusive right. you can't diminish his first amendment right. >> it's not a question that the new jersey lot abdicates first amendment rights. the question is whether he has an independent remedy under state law, that's the question that i think you are being asked. >> he could have a remedy in that state. >> in this instance. >> how could he? if we say there is no first amendment right what's civil right has he violated if what mr. goldfein has said is the state of the law attempting to violate civil rights? >> the right not to associate. >> we say it doesn't exist you lose the case. >> if we doesn't exist just to sew the minor -- so the mailer.
>> you may have broader substandard rights under new jersey law that would not be surprised if that were not the case. >> they are new jersey laws. this abrogates your first amendment rights. it doesn't matter whether or not he engaged. there could have been a violation of new jersey statute. it was alleged in this case and is never brought up by respondents in this case during any of the arguments and in any of the briefs and therefore with respect to this matter it's our position that he has every right to maintain this litigation with respect to violation of his first amendment right and here he is alleging that he has a right not to associate and that right really stems from the fact
that this court has considered in elrod. furthermore the third circuit makes its mistake in requiring heffernan to actually engage in some type of physical activity, campaigning. that's not necessary as i've indicated with respect to elrod. additionally the third circuit's decision in this case is actually lacks common sense. ..
they are still engaged in the same activity. it's just that the employer is seen as engaging in protected activity that went to stiefel and squash his right of association or non- association. the motive was to suppress that. clearly that has a chilling effect on other employees. it's very clear from the testimony in this case, and if you go to page 50, what's very telling about this case is when he went to pick up the sign there was a councilman there who was a chairperson of the election and he said to heffernan, boy you better be careful, maybe you should come back later because were hanging up the signs. that clearly shows that it would
have, not only in this police department or in the city of patterson, but other employees in different jurisdictions in different areas would have the same issues. you have to think twice before you did something. if you went to a political gathering or a campaign where you went to hear a speaker speaking you put a pamphlet on your desk, if your employer saw that and they didn't like that candidate, if they took action against you that would be action based on a motive to suppress one's rights. >> all of those things would be true if the mayor gave a speech saying i am going to fire anybody who is not a republican. all those things would be true. would there be a cause of action? would have a cause of action because of that speech? >> because of the speech itself? >> yes, because of the speech. he hasn't fired anybody.
if he just says i'm going to fire anybody who's not a republican. >> there wouldn't be at claim because no action was taken. you have the perception was whether action was taken for a particular reason, not whether, you're arguing that this is unconstitutional because it chills other people. that just doesn't carry order. >> what carries order is the fact that in this instance heffernan was denoted on the employer's mistaken perception that he was engaged in activity and you don't need to engage in activity. >> they said he was demoted because he gave the appearance of exercising the first amendment right. >> they perceived that he was exercising his right. the fact that he was not
actually engaged in that activity should make no difference with respect to the motivation outcome of what took place with mr. heffernan. it was ill will, it was against the administration and they took that action to suppress others. >> may i reserve the remaining time for questions. >> you may. >> out want to talk about how how he defines the right. he didn't want adverse action taken by his employer. he was directly injured. >> what's the case for that. >> there are two aspects that
support that and i'd like to get back to your concern about proving a belief. we think the way the court to find the right of issue in these two cases demonstrate an employee doesn't have to exercise his first amendment rights first. and those court cases the court said the plaintiff can show a constitutional violation of the first amendment simply by showing that the employer acted for the unconstitutional purpose >> those cases, i missed what you said, those cases were. >> this is for 45 u.s. and 517 and in o'hare. >> you're saying all of those cases no first amendment right was being exercised? >> know. >> is that your.? >> no actually, it wasn't clear
if they had engaged in any affirmative exercise. >> what was clear? was it clear they hadn't? >> it was not clear whether they had or hadn't and the court didn't inquire into that so what happened there was the plaintiffs had been had adverse action taken against them because they lacked the support of the republican party officials. that's all the court said about their allegation. there are key number of reasons that could lacked that support. they could've affirmatively refused which would be an exercise of the first amendment right, but on the other hand, they may have simply not have had the time to seek it or they may have been ignorant of the requirement in the first place. >> i thought in all of these cases up till now, whatever anybody is fired or demoted or not demoted, it hurts and you want to bring a lawsuit sometimes. up until now, those lawsuits would have to show that i was asserting a first amendment right and it is for that reason that i was not promoted. what you're saying is you don't have to show that at all.
all you have to assert is that the reason i was not promoted was that the employer believed that i was or wasn't. you don't have to show any assertion of a first amendment right. you just show that the employer liked republicans and that's enough. >> i think in the employment context there's no question that they were directly injured by, but to respond directly to your point, i don't think there is a serious concern here that there will be a flood of meritless lawsuits. that's for two reason. i take your point that this will expand the universe of litigation somewhat, but we already know in the statutory context, the courts have recognized based on mistaken perception and in that context we haven't seen any flood of meritless lawsuits. specifically i think it's always been fairly easy for plaintiffs
to allege the particular affiliation or belief. i was in the publican party. >> how do you know we haven't seen a flood of meritless lawsuits in that context. >> the one you are just referring to. >> when we looked at this, it doesn't come up very much. when it does, the courts have been able to use the standard techniques. >> you're looking at reported decisions rather than, you haven't done any surveys about how many complaints have been filed in this type of case questions. >> no no but when you look at reported this is an, you can see they are able to use summary judgment or there's no evidence. if the plaintiffs are going to have to allege they actually held the belief in question, this will raise exactly the concern that justice kennedy mentioned earlier about oversight of police and probing into police. this will affect all elrod case. every time in elrod cases brought the defendant will have the incentive to say. >> are you saying there's a right to be secure from
government oversight. >> i think the court recognized in o'hare that is a particular concern in the affiliation contacts. we don't want courts to have to examine the nature and extent of the plaintiffs beliefs. >> maybe it should be in some civil service act, but where where you finding this in the first amendment. >> the right in question is the right not to be a test of political affiliation. >> but that's not what you're concerned with or is there some other right that is somehow affected? you say the government cannot ask for a nonconstitutional purpose but how is the defendant hurt? i'm still a little unclear. >> we think the defendant has been hurt in the constitutional sense because of he shouldn't be subject to a test of political affiliation when it's not a job
requirement that the court, what they said in o'hare is that we weren't talking about a separate right not to be subject to the probing of police but i think they were suggesting we shouldn't have first amendment if we can help it. that is exactly will happen. >> i don't know why the right isn't to be free from arbitrary employment action based on the mistake. you thought i was being politically active, i wasn't. is there such a right under new jersey law that you can be fired for an arbitrary reason or a mistake and reason. >> i think there would be such a right i'm not sure whether it would apply here but i think the plaintiff's complaint is not that he was fired for inaccurate reason, he was demoted for an improper purpose.
>> you brought up in your brief that the employer might have had that policy. i think you said it. [inaudible] >> i think if you look at the petition there would be a remand anyway. >> was it a based on facts up till now? did you think there was such a policy? >> there was a factual dispute about this. if you look at the summary judgment filings, there are undisputed facts but you definitely have a dispute coming back from the other side. we think that is one thing that potentially the lower courts would have to look at and resolve the dispute in that sense. i do want to get back to another concern that i think this raises
but we do think the petitioner has his own first amendment right that was violated. we do think when an employer acts against an employee based on a mistaken perception about his belief that creates the same effect with which the elrod cases are concerned. the other employees will know that the employer expects political orthodoxy. i think there is another concern that deepens the chilling effect and that is that it applies not only in cases of honest mistake but also where the employer acts to exploit a loophole. you can imagine a situation where they know some people have engaged in the employer wants to send a message and does that. i think that is one of the dangers of the rule. it will create a loophole. what we are saying essentially
is it's just a corollary to the elrod right. it injures the employee than the employer should be equal equally liable. he shouldn't get a free pass. there are no further questions. >> thank you counsel mr. chief justice and may i please the court. the briefing is whether the plaintiff has to assert a constitutional right and i think the question so far have indicated an understanding that the plaintiff would have to. the real question is is their constitutional right here, one that we might define and other terms terms including the one justice kennedy identified as the right not to have your political views inquired in this is discussed in o'hare in describing the case.
i want to start there. we have to recognize this right has never been recognized in any other political association case whatsoever and there is no logical reason why that would specifically in the public employment context. >> can you explain what sense it would make for two people, the example, one of them is a big supporter and he gets demoted. the other is neutral and he gets demoted because the employer thinks he's a supporter. how could you make sense to a person of ordinary reason that one of them, the one that was engaging can't be demoted but the other one didn't do anything. >> i have to focus on the precise wording of your hypothetical. i think you might have something
different in mind because you identify the second employee, one who is politically neutral and the court has said in cases like elrod that the decision to remain neutral, i see this candidate and that candidate but i'm going to not choose between them because for any individual reason, that's that's protected. that's a political choice and in your precise hypothetical, both of those employees would have a kate claim. this case is critically different. the other side has quite consciously made an argument. the first that he was a supporter but he's given up on that. the second was that he had no association whatsoever. he didn't have any more association than i did. he was politically oblivious. so justice ginsburg, if you would ask me that question, what, what sense does it make, the sense that it makes is one is exercising a constitutional right and one doesn't. >> just to make sure i understand what you are saying, suppose there's someone who comes into office and it's a democrat.
they say i want as many democrats as possible in my office no matter what job they are doing. what you are saying is he can't demote or fire republicans, you can't demote or fire people who have other political views neither democrat or republican, but what he can do is get rid of anyone who is just politically apathetic. is that your view? >> if that was actually the policy then the answer to your question is yes under the first amendment. the reason is, those people, there's nothing in the first amendment that says the government can't encourage people to be politically active and that is entirely the point of elrod. >> you encourage a person to be politically active and then fire him or her. suppose they say i don't like the evening news, i like science fiction. i don't care if you're
republican or democrat. he cannot be fired, what is his right? >> my point is that he might have a state law right. he doesn't have a first amendment right because he's not engaging in first amendment protected activity. >> the government has a right to compel him to declare one way or the other? >> that brings us back to your question and that is does he have a right not to have an inquiry into his political views. that is not a right that has been recognized in any other political association contacts. when they discussed it in o'hare they did it in a specific and important way. they looked at cases which are general policies and what the court has said there is that when it's a sweeping policy it's not necessary to inquire into individual political beliefs. what this case is often understood as is applications, it is commonplace that if you
have a general rule and the general rule will be unconstitutional as applied to some people and the other people weren't asserting first amendment rights, it can be unconstitutional and we don't inquire into the standing of the plaintiff. that's what happens. it's not necessary to inquire into each individual employee. it is an entirely different. >> together response about the idea behind those cases is a different one but the idea has to do with why the government. [inaudible] if they asked act for an impermissible purpose to get as many democrats as possible into the government, once we say that the purpose, it matters not at all whether the person is a republican, an independent or someone who has never thought about politics in his life. because the government is acting in a way that's wrongful irrespective of that.
>> we just disagree. it's called an individual right, not not a government wrong. the individual has to engage in expression or association. i think it's not consensus any more on the free-speech side. with cases like waters and employee cannot bring a first amendment free-speech claim that says i don't actually engage in the speech but my employer thought i did. there is no first amendment right not to have this inquiry. remember our position in particular. >> does that mean the government can compel speech of a person if the person really just doesn't care one way or the other? >> it's a very important distinction. let me give a hypothetical that should be hard for us and that is heffernan is asked by the chief of police, do you support the mayor. he's completely agnostic and he doesn't support the mayor and he's transferred. the idea to not support or be subjected is a political choice. this was done in a specific way on purpose. he disclaimed any such influence or pressure or choice that he
was having to make. the important piece is that our position only applies to a party the right that if you have someone who's an independent, if he says i am not a engaged in association or speech if the employer fires a woman because he thinks she's pregnant, she she brings a discrimination case and she says i wasn't pregnant, i was just gaining weight. this you know -- does she have no claim then?
>> i think it's good for us that congress can write laws that are regarded as claim. >> those statutes focus on the employer. the employer cannot discriminate on the basis of sex. that employer was doing that. the first amendment does not focus on the government. it focuses on the citizen. the citizen has a right to free speech and free association. there's a difference between the two cases. if we can take this outside the employment context, and i think we can do that, if we can agree that there is a greater federalism interest and also this is an unconstitutional conditions case, just imagine the following hypotheticals that relate to this case. imagine the chief of police with the same motivation, if he
grabbed the sign and tore it up or he's being stopped to from entering a parade but what he was doing was just crossing the street or he went to the building where the headquarters were but he was stopped from going in but he was going to his lawyer's office. those are all the exact same motivation. i don't think there's any way the court would recognize such a claim. it's a very sympathetic claim. i get the fact of not being transferred or demoted but we have other regimes that fill that gap. >> he has two forms of release. the first is the collective bargaining agreement. it is not in the record but it is a public document. it's available on the public website and it is exactly what you expect. it's a little bit broader. if you have an employment action that is inequitable, it is
readable, the second thing is the provision that was discussed, and justice scalia was right, this just makes sense. the court. >> you agree that the petitioner is entitled to relief under the collective bargaining agreement? >> if his allegations are correct, yes. >> then you're hypothetical about stopping the person from crossing the street, the individual has no right to insist the government doesn't make a first amendment judgment about his activities. >> that's correct. justice kennedy -- >> the individual of the united states have no right or injury or interest in making sure the government doesn't evaluate everything they do from a
political standpoint? >> i think they have an interest justice kennedy. i'm not saying that. we are concerned that people have conscience and make their own political decision. but there's a real concern that i would like to talk about whether it would interfere with the management of government. it's an affirmative right, violation of of the first amendment. the reason you ought to be concerned is that there's another side of the coin. take it from the perspective of the supervisor. if this right is recognize which is to say the plaintiff need not engage in any association, then the supervisors association may well be chilled because he has to worry that any employee can say look, i was regarded as politically active. if i could just give you this case again, take the sign out of it. the plaintiff the plaintiff said he was well known as a state no left friend and supporter. imagine that is discussed in the police of chief office but the police of chief thanks that
heffernan really should be transferred if the petitioner is right here they really have to worry because if it was discussed there's every reason that he can just bring a lawsuit saying i wasn't actually involved in the campaign but you did it because he was mike's friend. that is a very significant consequence for the individual right. if we didn't have other protections that get to the concern about conscience, i could see the case being stronger. >> let's assume, i know you can't be fired because you're republican or democrat. but the person did not engage in that activity. >> he still in the position of the government describing to them a political believe he does not have. >> that's right for the government thinks a lot of things about me. some of them are not very nice as i mentioned in summer about my politics and that sort of
thing. there is not a constitutional right to have the government not think something about you. just remember as well. >> here they thought and acted. >> or to act, justice kennedy. >> may i say something. it's the government is taking absence against the person because the government thinks that person is exercising first amendment rights. [inaudible] they act on the basis of their freedom of speech. >> all of the provisions except for anti- slavery provision talk about what the government can't do. >> but here the government acted. they demoted the person. they put them back on the beat. the government acted.
they thought this person was engaging in political activity. >> justice ginsburg let me just say i don't think it's contested after the petitioners reply. if this was a speech case did the individual engage in the constitutionally protected activity? this is an issue in the courts other association case, public public employment association case where there is an issue of a different rule that applies versus an individual one off employment action which is what is at issue here. we think that is a critically important distinction.
[inaudible] it's an entirely different kettle of fish because you have a general policy. you can see people being chilled in the government taking a broad view of employee. >> i'm not sure how that works. it seems to break down very easily. there isn't a rule that says you're going to fire everybody but democrats but you're gonna say you can fire people one at a time. >> that's not what i'm saying. what i'm saying, when you have a general policy and this is what we think happened in elrod case the fact that you do not inquire into the individual person's political view because the policy is unconstitutional, it has never been the case in any context and the other side is that every opportunity in the world, we cannot find any first amendment case that says you don't have to engage in constitutional activity so long as the government thinks you did
and it's a problem with that is the rule. in all of these cases, if the plaintiff no longer has to say. >> i think you said the state out straight out, i can come into an office on the democrat, i can identify every person without a political view but to fire one after another after another and replace them all with democrats, do it for a reason that i prefer one reason to another and that will not be a violation of the first amendment. >> two things i think it is practically impossible because you would have to magically pluck out the people who are political. i just don't think you can do appear the constitution doesn't fix everything. >> you want them to hold that
they have the right. >> justice kennedy, i think that is not a first amendment violation. i don't think the other side thinks it's an amendment violation. remember the material requirement? >> part of the reason we have these protections is because we are worried that government is doing things for impermissible reasons. the government wants to create a world of speech in which everybody agrees with it and nobody opposes it. that's a fundamental tenet of what the first amendment is all about. you're saying no, the government's motive doesn't really matter as long as you can point to somebody who is holding down the sign. >> i think you're right. the court has said it is unnecessary but not sufficient condition. waters make it very clear which
is a first amendment public employee case that the individual has to engage in the constitutional protected activity. every one of them says the same thing. you have to have an individual. >> this approach to the same thing from a different perspective. suppose congress can pass a law or legislature, pass a law or legislation that attempts to abridge freedom of speech. is that a violation? it's an attempt. >> no one can dispel the political philosophy. >> no,. >> i doubt the pass it into law but i'm just substituting anyone you want for that. >> they pass it. by the way the people who hold that philosophy all leave on a
vote before the effective date or what's more likely, they bring a judgment action in the lawn up or effect. therefore it has no impact. that happens every day of the week. i'm just wondering if such a law which is an attempt, right on the books as blatant as you want whether or not that violates the first amendment. it's a serious question for them not taking a point of view. i want to know what you think. >> justice breyer, the reason we. >> i just want to know yes or no. >> is it a clear attempt to violate the first amendment? does it violate the first amendment? does it abridge the freedom of speech. >> if it's only an attempt and it won't succeed, no. the statute you described is unconstitutional. >> it is unconstitutional.
>> that's right per there are a lot of those. >> it will have all kinds of bad effects and chilling effect. >> it's defined as not going to succeed. if the statute doesn't. >> by chance it happens not to succeed. >> in my eyes it does. >> i'm just trying to keep up with this. in the one you just described, if it is the case that the law is going to go into effect, we do allow under first amendment an effort to bring bring a declaratory judgment and i'm just asking you if in fact they think it will succeed, they wanted to succeed that's why they passed it and threw a fluke it failed. does the fact that it fails mean it doesn't violate, does it or does it not violate. >> it does not. >> are you finished justice breyer? i really do want to help. if they passed a law that said no federal funds shall be used to implement the ban on talking
about the political views, the law won't go into effect. we tried but the money was taken away. it's not unconstitutional. >> or you can say it was passed by congress and vetoed by the president. is there a constitution? >> there would not be but where it actually goes into effect. >> were off on a tangent. there's no injury in this situation. the law doesn't go into effect. coming back to what justice breyer is attempting to say. [laughter] i don't know mr. goldstein that i understand either. i think justice kagan asked you that. why does it matter we don't care if someone is a republican or not in all ride and other cases and you say it's only because of the policy. the intent of the government is
to say i'm not going to promote anybody whom is not a democrat or republican. >> it's more than a policy. it will actually have adverse consequences. you have to have someone come in and say i'm not a democrat i'm not a republican common sense is not leave the courthouse. if i've a policy i will not hire democrats i think it's understanding that there are going to be democrats who apply for the job. >> why is it so simple to say i'm not hiring you or i'm demoting you because you politically associate and doesn't that show the person from even walking by a campaign,
doesn't show others who do want to associate marginally? >> i'm assuming there's no policy in place. >> i think it's a really important point on the question of chilling because the rules do say you can't do this for political purposes if the person is actually exercising a constitutional right. we all agree that if the plaintiff was a supporter or even if the mayor or had to decided to remain neutral, this is a bizarre case that comes to on the assumption that it is completely apathetic. >> it is bizarre. do you really believe mr. goldstein that the constitution does not solve all problems mark do you really believe that. >> no but i do think there's a concern that comes into play. i do not mean to demean the
concern about the government having a sense of what the political views are but i think it happens in all kinds of cases rather it's redistricting or campaign finances. adopting that doctrine is going to have pretty wide consequences when it's not necessary. i do think there should be common ground that there are multiple layers of protection for these employees. justice kennedy, remembrance of the basic rule, the plaintiff have always said i'm a democrat. it describes the political view of the company. it's never been regarded as a first amendment problem when you don't actually exercise any first amendment right. >> it is a first amendment right normally in the law there is a doctrine where the person who
does the bad thing takes mistake and he's held anyway. that's true, you shoot a but human tissue the. it's true of attempts generally. >> it's not fair of the constitution. >> why not. i would think that a constitution that has a chilling effect on the speech of millions of people that is directly aimed at a, b and c, as, as if some fluke, a bnc are not themselves injured and nonetheless everyone else's than it would still violate the first amendment. >> i think that is what you have here which is why raise my. >> if you adjust contrast in your own mind the statute that affects millions of people versus the beat cop who talks to one person in terms of its chilling effect. first amendment was born because of your hypothetical. the concern that a broad policy
will have widespread effect, that is not anything like this. >> you know of any case in which we relied on chilling effects where what was at issue was a one off like this one as opposed to a general policy that had a chilling effect? >> i don't know of any k. >> to the contrary, i can tell you in both waters and garcetti, the court said look we luck we recognize the rule that's being proposed to us. in waters it was the idea and it was just if the speech was protected. in the other case it was whether it's the employer's speech. the argument in both those cases is these rules are going to chill speech because they are of uncertain boundaries and we need to have wide-ranging expression. if i have to bring my case, in the court said we just have to balance things here. there is a real concern that is rooted in the history of the united states involving
political patronage. the court has never tried to extinguish politics from local government. >> the question in this case seems to be highly artificial. it's like a law school hypothetical. how often will it be the case that a plea will be unable to allege any expression or any association that is protected by the first amendment. it seems to me quite rare and it may be that this case comes away because the plaintiff was dealing with two things. one was the first amendment and the other one was the issue of his motivation and the alleged policy. even a person who was apathetic. is there not a first amendment right to say i don't like politics, i don't want anything
to do with politics, i'm not going to register a vote? >> the third circuit has a rule adopt in the case that says you do have the right to be politically apathetic. the reason the cases so bizarre is that the other side, for its own reason, decided not to assert that) i will tell you it does matter because there will be other kinds of cases where you have a public employee who is just not asserting any rights at all and is not involved in environmentalism or gun rights or whatever. the public employer, if it thought to perceive the employee as having been involved in some association than the subject to a claim. >> you have to show some facts to show the difference. you just can't say i'm involved in this and the employer fired me because of that. you have to show some connection
between the firing in the political beliefs. >> i would just take you back to my hypothetical and his support is discussed in the chief's office and then he has to be reassigned. they have to really worry that he's going to be sued. my point is this, there have been no other cases we been able to identify like this. the downside. >> if they had come into me before today's argument and just said does the first amendment prevent the government from punishing a person because that person does not share those views. i would've said of course it protects that. that's the whole point of the first amendment. now you're telling me no, the first amendment does not prevent government from punishing a person but of course that person doesn't share the government views unless that person is actively opposed to the government's view. if that person just really couldn't care less which a lot
of people in this country could not care less, they don't don't vote or pay attention, they wouldn't know who was running. the government can punish that person because that person doesn't show share the government's view. i would say that is one strange doctrine. >> it appears i have not persuaded you in this case. i would say in the debt government do it? the government cannot because there are lots of other protections. if the person is politically neutral, it is the case, if you're not engaging your not actively pursuing and even if you aren't active about it. >> thank you. you have a minute left. >> thank you mr. chief justice. a couple.i want to make with respect to declaring one as a neutral. they were engaged in political activity then of course it would
be protected by the first amendment. what i'm hearing is if he was neutral he would be covered or protected. i see little difference between being neutral and being agnostic in the sense that i'm not taking a position. >> i'm so totally confused. i don't like the weight was perfect presented to us but i thought he testified he had no other choice not to get involved in the campaign but that he was his friend and he supported him. he wasn't neutral. he just wasn't engaging in associational conduct by choice. that's what i thought. :